Important Update: DOL Issues New Memo on OSHA Silica Enforcement

Enforcement of the Occupational Safety and Health Administration’s (OSHA) silica standard as it applies to the construction industry will begin on Sept. 23. On Sept. 20, the U.S. Department of Labor’s Acting Deputy Assistant Secretary Thomas Galassi issued a memorandum on enforcement policy for the construction industry. The memo to regional administrators states:

During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.

If, upon inspection, it appears an employer is not making any efforts to comply, OSHA's inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.

To ensure effective implementation of the new standard, OSHA has developed interim inspection and citation guidance to be released prior to termination of this memorandum. The compliance directive will be finalized thereafter.

Silica remains a top priority for ABC National and we continue to have conversations with the U.S. Department of Labor. We will update you with any new developments.

Litigation Update:
ABC, along with a coalition of construction groups, is litigating the final rule. The case is in the U.S. Appeals Court for the D.C. Circuit. Briefing in the case is completed and oral arguments are scheduled for next week.

Background on the Silica Final Rule:
Issued on March 25, 2016, OSHA’s Occupational Exposure to Respirable Crystalline Silica final rule lowers the permissible exposure limit from the current standard of 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air, averaged over an eight-hour day, and an action level of 25 micrograms per cubic meter of air. In addition, the final rule requires contractors to follow several ancillary provisions, such as housekeeping and written exposure plans. Crystalline silica is ubiquitous on construction sites by virtue of its presence in many commonly used construction materials and products such as concrete, bricks, stone, asphalt, tile and countertops.

On April 6, 2017, OSHA delayed enforcement of the silica standard as it applies to the construction industry from June 23, 2017, to Sept. 23, 2017. On March 10, 2017, ABC, as a member of the Construction Industry Safety Coalition (CISC), sent a letter to the acting secretary of Labor requesting that the department delay enforcement of OSHA’s final silica rule by one year.

On April 4, 2016, ABC along with several national construction organizations filed a lawsuit against the final silica rule in the U.S. Court of Appeals for the D.C. Circuit. Briefing in the case is completed and oral arguments are scheduled for late-September.

Since the rule was proposed in 2013, ABC has voiced serious concerns with the rule and has taken the following actions: